HKSAR v. LEUNG CHI WAI

[English Translation – 英譯本]
HCMA 833/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 833 OF 2011

(ON APPEAL FROM STFS 3/2011)

_______________________

JUDGMENT

1.  Information was laid that the appellant smoked inside an indoor area which was designated as a no smoking area in a shop in Shatin, contrary to sections 3(2) and 7(1) of the Smoking (Public Health) Ordinance (hereinafter referred to as the “Smoking Ordinance”), Cap. 371 of the Laws of Hong Kong.

2.  He was tried at the Shatin Magistracy.  He was not represented and pleaded not guilty.  After trial, the Deputy Special Magistrate (hereinafter referred to as the “Magistrate”) found him guilty and fined him $4,000.

3.  He appealed against the conviction.

Prosecution case

4.  This case happened in a billiard club, which was an indoor area.

5.  The prosecution called one witness, who was performing anti-illegal smoking duty at the material time.

6.  The Magistrate’s account of her evidence is as follows:

“At the time of the offence, the prosecution witness was somewhere near billiard table no. 41 and she saw two men illegally smoking near billiard table no. 40; one of them was the appellant. The witness saw that the appellant was holding a lighted cigarette in his right hand and a billiard cue in his left hand, and that he walked forward alongside billiard table no. 40, smoking while he was walking. At that time, the witness moved towards billiard table no. 40. All along she maintained a distance of about two metres from the appellant. When she was observing him, her view was not obstructed and the place was well lit. She further saw that the appellant got to a rack which was placed under the billiard table and that he put the cigarette in his hand on a round plate on the rack. The interval between the moment when the witness saw the appellant smoking to the moment when the appellant put down the cigarette was about two seconds.

The witness walked up to billiard table no. 40 and revealed her identity to the appellant and another man, who was sitting beside the billiard table. She told them that smoking was forbidden in that place and that [they] had violated the health regulations. At that juncture the appellant was no longer holding any cigarette in his hand. He challenged the witness’s allegation that she had seen him smoking a cigarette which he held in his hand,so the witness took him to where the round plate was and pointed out to him the cigarette which she saw him put down a short while ago. At that moment it was still lit.

Finally, the witness issued a summons to the appellant for illegally smoking in a no smoking area.  The appellant told the witness his address.”

Defence case

7.  The appellant elected not to give evidence and he did not call any witness.

Verdict given by the Magistrate

8.  The Magistrate accepted the evidence of the prosecution witness. She found that the place of the commission of the offence was a designated no smoking area and that the appellant smoked at that place.  She convicted him accordingly.

Grounds of appeal

9.  At the appeal hearing the appellant was still unrepresented.  His grounds of appeal can be summarized as follows:

(1) The year of the date of birth of the recipient in the Notice Demanding Payment of Fixed Penalty (prosecution exhibit P1 —— hereinafter referred to as the “Notice”) served on him by the prosecution witness was different from the year in which he was born, therefore the Department of Health should have withdrawn the Notice; but the Magistrate thought that it was not necessary to do so and admitted the Notice as exhibit, thereby violating the legal principle.

(2) The Magistrate convicted him despite the above-mentioned mistake in the information.  Such conduct was against legal principle and the verdict was not given according to the law.

(3) The case R v Yeung Sit fong CACC 57/1979 submitted by the prosecution to the court at the trial was not applicable to this case.

(4) The Magistrate should not have accepted the evidence of the prosecution witness and used it as the basis of his conviction.

Discussion

1^stground

10.  When an officer issues a Notice, he must fill in the full name (both in English and in Chinese), the Chinese commercial code, the sex, the identity card number, the date of birth, the address and the contact telephone number of the alleged offender.

11.  The only mistake complained of by the appellant was the year of his date of birth.  He was born in 1980 but the prosecution witness wrote down ‘81’.

12.  This mistake was one of the main points of his submission at the trial.

13.  In the witness box the prosecution witness admitted she had made the mistake and she provided an explanation.

14.  The Magistrate accepted the witness’s explanation.  Later I will analyse whether her finding made in this respect is sound.  The focus of the 1^st ground was whether the mistake would render the prosecution and the conviction unsafe.

15.  Miss Rosa Lo, counsel for the respondent, submitted that the basis of the prosecution was that the appellant’s conduct had violated sections 3(2) and 7(1) of the Smoking Ordinance, and that whether the conviction was safe depended on whether the prosecution had tendered sufficient evidence to prove beyond reasonable doubt that the appellant did commit the offence.

16.  Miss Lo averred that the prosecution did not rest on the Notice; therefore, any error in the Notice, even if it existed, would not be an obstacle to prosecution or render the prosecution and the conviction unsafe.

17.  I have carefully read the relevant provisions of the Smoking Ordinance and the Fixed Penalty (Smoking Offences) Ordinance (hereinafter referred to as the “Fixed Penalty Ordinance”) Cap. 600 of the Laws of Hong Kong.

18.  Section 3(2) of the Smoking Ordinance provides that:

“No person shall smoke … … in a no smoking area.”

19.  Section 7 provides that:

“Any person who contravenes section 3 …… commits an offence ……”

20.  I agree that the offence in question was created by these sections.

21.  There are provisions in the Fixed Penalty Ordinance which offer an opportunity to a person alleged to have committed an offence to discharge his liability to conviction.  Such provisions do not create any offence nor do they form the basis of bringing any prosecution in respect of the offending conduct.

22.  The legislative intention of such provisions can be seen in section 3 of that Ordinance:

“(1) If a public officer has reason to believe that a person is committing or has committed a scheduled offence, he may give the person a notice in the prescribed form offering him an opportunity to discharge his liability to conviction for the offence by payment of the fixed penalty for the offence within 21 days from the date of the giving of the notice.

(2) ……

(3)  Subject to section 7, where a person has received a notice under subsection (1) and has paid the full amount of the fixed penalty shown in the notice within the period referred to in that subsection, he shall not be liable to be prosecuted or convicted for the scheduled offence specified in the notice.”

23.  The appellant submitted that section 7 of the Fixed Penalty Ordinance supports his argument.

24.  Section 7 provides that:

“(1) Where a notice under section 3(1) has been given to a person, the Authority may, at any time before the commencement of any proceedings against the person in respect of the scheduled offence specified in the notice —

(a) withdraw that notice; and

(b) serve on that person another notice in writing informing him that the notice under section 3(1) has been withdrawn.

(2) ……

(3) Where a notice under section 3(1) …… is withdrawn under this section and any sum of money has been paid pursuant to the notice, the Director of Accounting Services shall, on demand by the person to or on whom the notice was given or served, repay him the sum so paid.

(4) Where a notice under section 3(1) …… is withdraw under this section, proceedings in respect of the scheduled offence specified in the notice may only be commenced if —

(a) the ground, or one of the grounds, on which the notice is withdrawn is that it contains incorrect information; and

(b)  the incorrect information was supplied by the person to or on whom the notice was given or served.”

25.  The Ordinance does not provide that the Authority must withdraw the notice if there is any incorrect information in the notice.

26.  In this case, the incorrect information was not material.  The information which had been written down in the form was sufficient to identify the person alleged to have committed the offence.  It was neither illegal nor unreasonable for the Authority not to withdraw the Notice.

27.  The offence involved in this case was not failure to comply with the Notice, but was smoking in a no smoking area.  The crux of the matter was therefore whether the prosecution could prove that the appellant did smoke in the no smoking area.

28.  The Ordinance does not provide that the Authority must issue a notice before bringing any prosecution.

29.  I also consider that the magistrate’s admission of the Notice as exhibit did not violate any legal principle and was not improper.  The admission of an article as exhibit does not mean that the court accepts everything that the exhibit is used to prove.  What effect an exhibit has depends on the purpose for which it is produced.  After an exhibit is produced, it is still subject to the court’s scrutiny and assessment.

30.  The Magistrate had a clear and thorough understanding of the crucial issue of this case.  She pointed out in the Statement of Findings that:

“13. I reminded myself that the burden of proofin this case was on the prosecution. The appellant had no duty to prove anything. The prosecution was required to prove beyond reasonable doubt that the appellant was guilty. The benefit of any doubt was to go to the appellant.

14. The appellant elected not to give evidence and did not call any witness. I would not for this reason make any conjecture or inference adverse to him.

15. I reminded myself that each case has its own particular features and sweeping generalization should not be made. I bore in mind that I had to consider the inherent probabilities of the evidence and that the demeanour of the witnesses could be relied on only as a last resort.

16. The appellant had no criminal record. I followed the guideline laid down in Berrada and regarded him as having a lower propensity to crime and a higher degree of credibility.

17. The prosecution witness was the sole witness from the prosecution, therefore I was doubly cautions when I was considering and assessing her evidence.”

31.  I find that the magistrate had given herself proper, correct and sufficient directions.

32.  The 1^st ground is not established.

2^nd ground

33.  The Magistrate was well aware of the mistake in the information contained in the Notice.  She had considered and analysed what effect this mistake had on the credibility of the prosecution witness and on the evidence of the prosecution.[1]

34.  The Magistrate believed that the prosecution witness was honest and credible, and was satisfied that her account of the facts was true.

35.  The Magistrate clearly understood that the crucial issue in this case was whether the appellant was the person who was, as alleged by the prosecution witness, smoking at that time.  She reminded herself of the importance of assessing identification evidence and warned herself that the danger of mistaken identification existed even in the case of an honest witness.

36.  Having accessed the relevant evidence, the Magistrate found that the identification made by the prosecution witness was correct.  My view is that the finding made by the magistrate is sound and is supported by ample evidence, so there is no reason for me to intervene.

37.  The Magistrate carefully scrutinized and accessed all relevant evidence.  Only after that did she make the finding that someone did smoke in the no smoking area and that the person was definitely the appellant.  I consider this finding to be sound.  It is not against any legal principle and the verdict is not one given not according to the law.

38.  The 2^nd ground fails.

3^rd ground

39.  At the trial the prosecution cited the case R v Yeung Sit Fong to support their contention that even if the Notice was invalid or defective, they were still entitled to bring the prosecution.

40.  I do not agree with the appellant’s argument that this authority was not applicable to this case.  In any event, there is no conflict between my views and the rationale behind the decision in this authority.

41.  In this case, there was no mistake or omission in the information about the recipient of the Notice, except that a written mistake was made regarding the year in which the recipient was born.  On the basis of the reasons given during the earlier discussion about the 1^st ground, I hold that such mistake would not render the prosecution improper or the conviction unsafe.

42.  The appellant submitted that recently the Transport Department had withdrawn a fixed penalty notice for illegal parking which was issued to their company, because one of the numerical figures of the registration mark of the offending vehicle was not clearly shown on the record.

43.  Obviously, there are material factual differences between the incident mentioned by the appellant and the present case, so that they cannot be treated in the same manner.

44.  Besides, what is more important is that the magistrate had taken into consideration everything she ought to consider before she gave her verdict in this case, and no error is detected.

45.  The 3^rd ground is not substantiated.

4^th ground

46.  The appellant asserted that since there was such a mistake in the Notice, the Magistrate should not have believed that the prosecution witness had verified the identity and facial appearance of the offender, should not have been satisfied that she was honest and credible, and should not have accepted her evidence.

47.  When giving her evidence the prosecution witness explained that she wrote down the wrong year because at the scene the opposite party was very uncooperative and he kept on talking to her while she was writing out the Notice.

48.  The Magistrate made the following comments in the Statement of Findings:

“I had carefully considered and analyzed the evidence of the prosecution witness. I found that with regard to the material areas her evidence was clear, unequivocal, straightforward, definite and unshaken. I believed that she was trying her best to relate honestly what she saw, without exaggerating or distorting the facts. In her evidence I did not detect any contradiction or anything that was unreasonable, illogical or inherently improbable. I found that the prosecution witness was honest and reliable, and I was sure that she had made no mistake in material areas. I accepted her evidence.”

49.  Taking into account the advantage enjoyed by the Magistrate of having seen and heard the witness when she was assessing her evidence, I do not think that the appellant has tendered sufficient evidence to convince me that I should interfere with her finding.

50.  The 4^th ground must also fail.

Conclusion

51.  None of the grounds put forward by the appellant is established.

52.  Having considered all the evidence, I hold that the guilty verdict given by the Magistrate is safe and is supported by sufficient evidence.

53.  I therefore dismiss the appeal and uphold the conviction.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.